and 120 New York State Reporter plaintiff's attorney makes affidavit that the plaintiff and defendant are husband and wife, and that the action is for divorce.

I have grave doubts whether the provisions for substituted service, under sections 435 and 436 of the Code of Civil Procedure, were intended to apply to an action for divorce; but, whether so intended or not, I am constrained to the view that their use for that purpose should be employed with the utmost caution. The provisions of section 438 et seq., for substituted service by publication, apply to such an action by the express provisions of those sections, and, unless it appears from the moving papers that service in the manner there provided for cannot be made, the application for an order directing service under sections 435 and 436 should be denied. In order to justify an order under section 435, supra, it must appear by proof that the defendant is a person residing within the state, and that his place of sojourn cannot be ascertained, or, if he is within the state, that he avoids service, so that personal service cannot be made. Only two contingencies are here provided for. Neither of these is covered by the papers presented upon this application. The sheriff seems to have made no effort to discover the defendant's present place of sojourn, and does not state anything which indicates that she is within the state and avoids service.

But even if such contingencies were met by facts set forth in the return, it further appears that the defendant's residence and that of the plaintiff is one and the same, and there is nothing to indicate that any other person, save the plaintiff and defendant, resides there. I think, therefore, that a court or judge should refuse to make an order directing the service of the summons by leaving a copy thereof at such residence, if admittance can be obtained, and, if admittance cannot be obtained, to affix the same to the door, and mailing a copy to defendant at such residence (this being the only method of service authorized by section 435), because the practical effect of such a service would give notice to no one save to the plaintiff himself, the defendant being absent from home. The provisions of the Code for substituted service by publication contain ample provisions for a case such as this, and I think the plaintiff should be required to resort thereto. The application, therefore, is denied.

Application denied.

(91 App. Div. 240.)

REICH v. DYER et al.

(Supreme Court, Appellate Division, First Department. February 11, 1904.) 1. DEED AS MORTGAGE-SUBSEQUENT SALE TO MORTGAGEE.

Plaintiff executed to L., defendants' testate, an instrument on its face a deed with a consideration of $40,000, but which was in fact a mortgage, with an option to L. to buy within a year for the consideration expressed in the deed. Thereafter L. wrote plaintiff that she elected to exercise the option, and plaintiff wrote her that she thereby released the land, with the understanding that L. was to pay her the balance of the purchase price. Held, that this was not sufficient to constitute a sale, so as to entitle plaintiff to recover the consideration.

Laughlin, J., dissenting.

Appeal from Trial Term, New York County.

Action by Elizabeth Reich against Edith La Bau Dyer and another, executrices of Alicia V. La Bau. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

John M. Bowers, for appellants.
Charles Strauss, for respondent.

INGRAHAM, J. The plaintiff in this action seeks to recover the consideration named in a deed of real property, which, upon its face, conveyed a certain farm upon Long Island to the defendants' testatrix. The complaint alleged that "on or about the 28th day of March, 1895, at the city and county of New York, this plaintiff sold and conveyed to the defendants' testatrix, Alicia V. La Bau, in her lifetime, at her request, all that certain tract, piece, or parcel of land” which is particularly described; that "the defendants' testatrix first entered into possession of said premises on or about the 28th day of March, 1895, and exercised all acts of ownership over same up to the time of her death"; that “the said defendants' testatrix agreed to pay said plaintiff therefor the sum of forty thousand ($40,000) dollars, as follows: Three hundred and sixty-one ($361) dollars, which was due and owing by said plaintiff to defendants' testatrix on the said 28th day of March, 1895, to be credited as of said last-mentioned date as part consideration of said purchase money, and the balance of thirty-nine thousand six hundred and thirty-nine ($39,639) dollars to be paid by said defendants' testatrix, Alicia V. La Bau, on or before the ist day of March, 1897." The allegation thus relied on is a sale of the premises in question on the 28th day of March, 1895, the consideration therefor to be paid on or before the ist of March, 1897.

The answer, in effect, denied the sale of the property, and alleged that there was no contract entered into by the testatrix relating to a sale or conveyance of this property; that the contract alleged was void under the statute of frauds; and that the claim or demand sought to be recovered was barred by the statute of limitations.

The plaintiff testified that she was the owner of a farm at Brentwood, Long Island, and that she continued in the possession of this farm until the month of March, 1895; that she made a conveyance of the property on the 31st day of October, 1894; that this conveyance was in pursuance of negotiations in which her husband, Mrs. La Bau, and herself took part; that in pursuance of these negotiations she executed a deed, which she gave to Mrs. La Bau; that the plaintiff remained in possession of the farm until February, 1895. This deed was dated and acknowledged on the 31st of October, 1894, and recorded on the roth of November, 1894. She also testified that on the 28th day of March, 1895, she delivered possession of the farm to one Moyer; and that on October 30, 1894, she received a loan of $3,133 from Mrs. La Bau. The plaintiff's husband testified that the deed of the property was delivered to Mrs. La Bau in the presence and 120 New York State Reporter of the witness on the last of October, 1894; that Mrs. La Bau said that she reserved a right to purchase the property within one year for the amount stated in this deed, and meanwhile it stood as security for the loan of $3,133 made by Mrs. La Bau to the plaintiff ; that prior to this time there had been a discussion about the price at which the plaintiff would sell the property, and that the plaintiff had stated that her lowest price was $40,000, and it was the result of this conversation that $40,000 was inserted in the deed; that subsequently, in February, 1895, Mrs. La Bau advertised for a tenant of the premises; that the answers to this advertisement were submitted to the plaintiff, and that then a Mr. Bell, who had acted as attorney for the plaintiff, was introduced to Mrs. La Bau by the plaintiff or her husband to go out to the farm, and show it to applicants; that Mr. Bell was asked by both Mrs. La Bau and the plaintiff to show the place and to draw up the lease of the premises; that the property was leased to Mr. Moyer. Mr. Bell drew up a lease to Moyer, delivered it to Mrs. La Bau, and subsequently the witness received a letter inclosing the lease prepared by Mr. Bell, as follows: "Please sign the accompanying lease as agent for me and oblige [Mrs.) A. V. La Bau." Thereupon the witness signed this lease, “Lorenz Reich, Agt.," and it was executed by the tenant, who went into possession of the premises. This lease is in form between “Lorenz Reich, of the city, county and state of New York, lessor, as agent of Alicia V. La Bau, owner of the lands and buildings thereon hereinafter described," and purports to lease the premises in question for the term of five years, commencing on the ist day of April, 1895, at the yearly rental of $1,200, and with a covenant that the lessee should have the option of purchasing this property for the price of $45.000. The witness then testified that he remembered the plaintiff receiving a letter delivered by Mr. Bell in the handwriting of Mrs. La Bau either the evening after the lease with Moyer was signed or the next day—that is, either the 29th or 30th of March, 1895; that he was present when this letter was received by the plaintiff; that the plaintiff read it aloud to the witness, and afterwards handed the witness the letter; and that he was familiar with Mrs. La Bau's handwriting, and the letter was in her handwriting. He further testified: "To the best of my recoilection, I think the letter read this way: 'As I yesterday—your farm at Brentwood, Long Island, stated in the deed of October last I purchased for $40,000, of which three hundred and some dollars—I don't remember exactly, but I think sixty some dollars—has been credited as part payment and the balance I am to pay on or before March, 1897, and as I yesterday leased the property and the chattels to a tenant who has a right of purchase, for my protection, I would like to receive a letter from you stating that you release the property; also send me a duplicate receipted bill for all the chattels.' This is about the substance of the letter.” And that on the following day, March 30, 1895, the plaintiff answered that letter in writing. The defendants then having been called upon to produce such letter, a copy was offered in evidence, when counsel for the defendants said: “If this is offered as a conveyance, I object to it on the ground it does not conform to the statute." In response to this objection the plaintiff's counsel said, "I offer it as a communication from Mrs. Reich to Mrs. La Bau in answer to the letter which has been described ;" and the court said, "It is not a conveyance; it is merely as a communication," whereupon the copy was admitted in evidence, and is as follows:

"March 30th, 1895. "My dear Mrs. La Bau :-As per your request yesterday I write this letter to say that I hereby release my farm at Brentwood, L. I., described in the deed which you recorded in Suffolk Co. with the understanding that you are to pay me the $39,639.00 the balance of the purchase price on or before March 1st, 1897. Enclosed please find duplicate list of all horses, cows, poultry, carriages, wagons, furniture, bedding and all the chattels, &c., &c., according to your request. "Very respectfully yours,

Elizabeth Reich. [Seal.)" Enclosed in this letter was a writing which commenced: "Bought of Elizabeth Reich, by Mrs. Alicia V. La Bau, Mch. 29th, 1895." This was followed by a list of furniture and other articles, and the statement : “This amount is deducted from the $3,133.00 you loaned me October 31st, 1894. The balance of $361.00 still due to be credited as part consideration of purchase of my hundred acre farm at Brentwood, L. I. Price $40,000. The balance $39,639.00 to be paid me by you on the ist day of March, 1897.” The witness then testified that he delivered the original of that letter to Mrs. La Bau at her residence; that in about nine or ten days after Moyer took possession of the premises, a barn on the farm and some horses in it were burned; and that Mrs. La Bau made a claim for some insurance on the property destroved. Proof of loss under this policy was introduced, and in that proof of loss it is stated that the property insured belonged to Alicia V. La Bau; that on the 5th of April, 1895, a fire occurred, by which the property insured was injured and destroyed to the amount of $ - that the insured claimed of the Sun Insurance Company the sum of $2,000. This claim was signed and sworn to on the 17th of April, 1895, by the defendants' testatrix; and subsequently an agreement to arbitrate the amount of the loss was executed by the insurance companies and the defendants' testatrix, but whether any award was ever made by the arbitrators does not appear; nor does it appear to whom any loss under this policy of insurance was paid, if to any one. When, on cross-examination, the witness was asked to repeat the conversation between himself and Mrs. La Bau to which he had upon his direct examination testified, he said that he could not repeat it, as he had no present recollection of what he had told of that conversation the day before; that, unless his testimony of the day before was read to him, he could not remember the exact words; and that at that time his mind was absolutely blank as to what he testified to in regard to that conversation.

Mr. Bell, the attorney who had figured in the transaction, was then examined. He testified that the lease was prepared by him, and executed before him as a notary public; that the lease was prepared under the directions of the defendants' testatrix, and after the lease was executed by the plaintiff's husband one copy was delivered to the tenant and one retained by the witness, and the next day he delivered the one that he retained to Mrs. La Bau; that at that time she had a and 120 New York State Reporter letter, which she had prepared, or that she wrote while the witness was present, addressed to the plaintiff, and asked the witness to deliver it to her; that at the same time she stated to the witness that “she had decided to purchase the property, and pay the consideration mentioned in the deed on or about the ist of March, 1897; that she would like to have the letter from Mrs. Reich, and had made this lease of the property, and one of the parts of the lease might require her to deliver a deed of the property to the tenant; that she desired Mrs. Reich to release to her the farm, and also the chattels on the farm, and to charge her on account of the loan that she had made to Mrs. Reich the amount of the chattels, and the surplus remaining to be credited as a part payment on the purchase price of the property.” Bell stated that he delivered the letter to the plaintiff, and reported to the plaintiff what Mrs. La Bau had stated; that the plaintiff opened the letter, and read it aloud, and the letter was substantially what Mrs. La Bau had said to him in the conversation which he had detailed; that subsequently he called on Mrs. La Bau, and she stated that she had received a letter from the plaintiff, and it was entirely satisfactory. Upon cross-examination the witness testified that he was acting for both parties all through these proceedings; that the lease was made with the approval of Mrs. Reich; that he understood that Mrs. La Bau relied implicitly in Mrs. Reich and her husband in whatever they might say or do. Upon this evidence the plaintiff rested.

The defendants then moved to dismiss the complaint upon the ground that, the plaintiff having alleged that the plaintiff sold and conveyed the property on March 28, 1895, that was absolutely unproved, no such evidence having been produced ; and also that the writings constituting the contract as evidenced by the lost letters are insufficient, and that the contract, being regarded as oral, is void by the statute of frauds; and also that the cause of action accrued more than six years prior to the death of Mrs. La Bau on August 16, 1902. In denying that motion the learned trial judge stated that:

"The argument overlooks the fact that it was not a mortgage. It was an absolute deed in fee. It is made a mortgage by parol evidence, and all the plaintiff does here is to show, also by parol evidence, that the mortgage which was intended when the absolute deed was given by Mrs. Reich, and that the tenor of the deed as originally drawn, delivered, and recorded, continued in full force as a deed in fee, as it always had read. Parol evidence was given to show that originally it was in the nature of a mortgage. Parol evidence was properly given to show that subsequently the deceased took advantage of the option which she has a right to exercise of treating the transaction no longer as a mortgage, but now as a deed in fee as it read. The statute of frauds has nothing to do with it."

The defendants then introduced evidence tending to show that the plaintiff and her husband treated the property as belonging to them subsequent to the date of this alleged transaction; that shortly after this deed was executed, and in January, 1895, judgments aggregating more than $20,000 were entered against the plaintiff, transcripts of which were filed in Suffolk county, the county in which this property was located. The parties then having rested, the defendants again moved to dismiss the complaint upon substantially the same grounds, which motion was denied, whereupon the court left the question to